Barnyard Justice

    Beastly behavior might end up in court.

    Beginning in the Middle Ages and extending through the 18^th century, many European nations believed that animals could commit crimes. I’m not talking about soiling the rug or barking after midnight. Pigs, dogs, rats, and other creatures might be accused of penal law violations. There were several sources for the belief in animal culpability. Chiefly, the Hebrew Bible supported the idea. In Exodus 21:28, it is written that "[w]hen an ox gores a man or a woman to death the ox shall be stoned, and its flesh not eaten." Additionally, medieval cosmology established a great chain of being. Society was hierarchical. Atop the ladder sat God, followed on the lower rungs by heavenly hosts. Below them, God’s representatives in church and state—the priests and king rested. Nobles, freemen, and serfs usually complete our view of the ladder. The hierarchy, however, did not stop there. Primates, quadrupeds, lower animals, and vermin were followed by plants in the great chain of being. Unique among the earthly species, humans were made in the image of God. They alone had the opportunity to join the divinity in the next world. Because each occupant of a rung had the same essence, to a greater or lesser degree, moral agency extended down the ladder.

            Both secular and religious authorities agreed on the need to prosecute certain animals in courtrooms and, as appropriate, to punish them for offenses. The reasoning behind these prosecutions varied. Some saw animals as sentient beings who had conscious thoughts. They could scheme and behave like humans. (Although from a different time, we might remember Aesop. He famously crafted a bundle of tales about anthropomorphic beasts of farm and forest.) Other thinkers supported animal trials out of retribution and a need to extract society's measured response to wrongdoing. The absence of legal intent did not necessarily free the animal from criminal liability or consequence. Still others saw a threat to social order by not acting. A goring ox was not executed because it was morally guilty. These thinkers recognized that oxen do what oxen do. As a lower animal, however, it had killed a higher animal. The ox threatened to upset the divinely ordered hierarchy of God’s creation. Finally, some, like Thomas Aquinas, reasoned that the lower animals are God’s creatures. He uses them for his purposes. To punish or curse them for their actions would be blasphemy. Offending animals, he argued, therefore, must be agents of Satan. It was widely understood that the Devil frequently used irrational and simple creatures to the detriment of humans. The disposition of the cases then must not be seen as punishing the animals but as hurling them at Satan. Think of the demon-inhabited pigs in the Book of Matthew, Chapter 8. They ran off a cliff into the sea and drowned. The agent of evil needed to be destroyed not for the criminal act but rather to resist the Great Tempter.

            Whether criminally culpable or demon-possessed, animals deemed guilty/cursed were destroyed. The meat could not be salvaged. Neither the beast nor the owner fared well under the system. Far better, I suppose, when a non-domesticated animal stood accused. Nobody loses when a mosquito gets its due.

            Courts, both secular and ecclesiastical, developed procedures for the trials of animals. A distinction was drawn between the capital trials by secular courts of offending domestic animals (Thierstrafen) and judicial proceedings undertaken in ecclesiastical courts against vermin for damage (Thierprocesse). Although the cases had non-traditional defendants, the courts took the proceedings very seriously.

            As often happens, while looking for something else, I stumbled into a 1906 book, The Criminal Prosecution and Capital Punishment of Animals by E.P. Evans. He documents the medieval belief in the appropriateness of the criminal prosecution of animals. Evans, in particular, notes the work of Bartholomé Chassenée, a 16^th-century French jurist. Chassenée wrote a treatise describing his efforts to defend accused beasts. Evans' collection of animal trials is a fascinating world to visit. 

        The November/December issue of Alfred Hitchcock Mystery Magazine includes my story, “A Rat Tale,” the second story about the animal avocat, Bernard de Vallenchin. The tale is based loosely on a Chassenée trial. Both Valenchin and Chassenée work on behalf of the lowly rat. It was tempting to get lost in the weeds when telling the story. Who, after all, doesn't want the protagonist to drop a casual aside about the excommunication of moles in the Valley of Aosta, Italy, in the year 824. I tried to strike a balance. The goal was to offer a compelling courtroom drama. I also wanted to provide a few odd, historical details.  I hope that a reader finishes the tale entertained and interested in this jurisprudential footnote.

---

            If you don't like the story, punish my dog.

            (I'll be traveling on the day this posts. If you comment, I apologize for not getting back to you promptly.) 

            Until next time. 

 

Small Claims 0

Previously I described the steps I used to take a conglomerate to court. Long before, I was sued by a dishonest man and lost a small claims case that, had I been more knowledgeable, I might have won.

My friend Geri lived a mile from me and I watched over her house when she vacationed. Often she’d schedule work while she was away, and this time she wanted to replace her fence.

Thanks to hurricanes and moisture, fences have short life spans in the Sunshine State. Fences were a concern for me too, so I researched ways to give fences extra years, a realm of excitement beyond words. The following are the fruits of my labor, otherwise called ‘best practices’:

1. Embed posts in concrete.
2. Shape the concrete into a dome to run off water away from the post rather than collect moisture around it.
3. Don’t install panels at ground level, but elevate them an inch or so above.
4. Don't use staples or ordinary nails. Use ring-shank nails to resist winds.

I typed a list of the above and sketched a diagram of setting posts in concrete. These I stapled to the sales proposal given Geri and agreed to the extra charges and signed off. The installer missed their start date, so on her way out of town, Geri asked a neighbor to phone me at work whenever construction commenced.

The First Hint

The neighbor gave me a heads-up at eight the next morning. By the time I arrived, workmen had already set several posts… without concrete. After I explained they were supposed to use cement, a worker with a garden trowel spread dry sandmix around posts.

No, I said, they’re supposed to be set in concrete shaped to aid water runoff. I returned to work leaving them to it.

I flew to Miami and returned the following afternoon. The job had been wrapped minutes before my arrival. Except…

The pickets (paling panels) rested directly on the ground. Grounded palings made wood rot more quickly, wicking moisture from the soil up through the grain.

The crew had removed and reset only the first post in concrete; they hadn’t bothered with the others. Many showed a sprinkling of dry concrete but nearly as many went without.

Now suspicious, I looked closer. On the plus side, they hadn’t used staples but, after pulling one nail, I discovered they’d used ordinary smooth box nails. They company had completed none of the requirements they’d agreed to.

I’d let Geri down. I was so ticked off, I missed the most obvious mistake of all.

“Uh,” said the neighbor. “Why did they install half the fence backwards?”

“What?”

“Half of the fence is inside out.”

The workmen had installed the left side of the fence facing out and the right side facing inward. Stick with me if you can handle the excitement.

Small Claims 3

Home Automation Interface

Last month, I told you about purchasing expensive name brand home automation that madly malfunctioned. The dealer/installer and the manufacturer’s tech support added insults to injury… literal insults, telling me the device failure was my fault. I was stupid. I was annoying. I misrepresented or misinterpreted the sales literature. I was trying to cheat them into getting something for nothing. Surely their mothers wouldn’t have taught them to behave like that.

So what would an American do? I took both parties to small claims court.

Perhaps it’s a character defect, but I’d have loved to witness the deputy striding into the corporation’s Tallahassee headquarters to serve the complaint. No, that’s not quite true. I really wanted to see the consternation of the so-called customer support guy when faced with a subpoena to produce their tech line audio tracks “recorded for training purposes.” Finally! A useful purpose for those things.

First Contact

A few weeks after filing, I received a telephone call from California, a vice president within the conglomerate’s North American legal department. My little case garnered more attention that I’d anticipated. He courteously enquired if I’d hired counsel and then discussed the case.

I was mindful to guard my tongue. Attorneys and competent interrogators know people feel a need to elaborate. Therein lie traps for the unwary. I simply laid out the facts without revealing how much proof and documentation I’d gathered. When he’d question one aspect or another, I simply said I was prepared to demonstrate this or that.

He asked if I’d vented on-line. I had not.
He asked if I would allow their technician to inspect the unit in situ. I was.
He asked if I was willing to settle. I was.
He asked if I was willing to settle for only a replacement. I wasn’t.
He asked if I was willing to continue the conversation. I was.

While cordially but carefully phrasing regrets, he explained I was unlikely to prevail on several accounts, such as loss of income and violations of sharing personal information. Likewise he predicted a judge wouldn’t award me expenses, but might award them attorneys’ fees. He was surprised to learn his conglomerate’s web sites offered no way to opt out of the distribution of shared personal information.

HAL Gone Bad

A technician sent by the vice president arrived. He confirmed everything I said and more. The device wasn’t merely a brain-dead dud, it was a hulking, marauding, unpredictable Frankenstein of a dud.

He verified the firmware serial number 00001. My court filing argued if this were accurate, it meant the assembly line hadn’t yet learned to build this new machine. And if it wasn’t true, then it opened scarier possibilities. A user in California or Calcutta might use their app and suddenly find themselves inside my house.

Mediation

Florida’s Small Claims Courts require pre-trial mediation. This mandatory session takes place prior to a trial in the hope the parties can reach a resolution and avoid tying up the court’s time. I was prepared to back down twenty percent or so, but little more.

Many court-appointed mediators are retired attorneys. They know what they’re doing. The one assigned to my case was pleasant and professional. When the opposing attorney stepped out of the room, he complimented the case’s preparation and suggested, should mediation fail, I might want to move for a jury trial rather than rely on the stricter view of a judge. Good point.

The conglomerate sent down an attorney from Tallahassee. He turned out cordial and likeable. However, he informed the mediator their California Vice President of Legal suggested the gadget wasn’t as bad as claimed, and they’d settle for no more than a replacement product. The lawyer gave an impression he’d urged California to compromise, but they were hanging tough.

This lawyer spent seven hours driving and three hours in the courthouse just to say no. He did what he was told to do, but he didn’t appear pleased as he packed to leave. We shook hands. He said he’d stay in touch and departed on his 3½-hour journey back to Tallahassee.

The Other Party

The independent dealer/installer didn’t appear at all, forfeiting his part of the case. Before leaving the courthouse, I petitioned for a summary judgment.

My intent wasn’t to crush the little guy, crappy as he was. What he had in mind by not appearing, I don’t know, but he panicked. He begged me to settle for a lesser amount, saying he could afford little, and then named a figure more than I would have asked.

I didn’t need an invitation and he had acted a right ass. “Sure,” I said. “Have it to me before the hearing, then I’ll ask the court to dismiss.”

As Seen On TV

Besides court filings, I received a letter with a charming picture of People’s Court Judge Marilyn Milian. Oops, not quite– it was from Lori Mooney, a producer for The People’s Court. They wanted my case on television.

Bad enough I burden SleuthSayers with my laundry, but I’m too private to air it on national television.The dealer’s opinion was immaterial, but I felt certain the conglomerate would not risk publicly broadcasting the problems in their fancy flagship device. They might win the case but lose their appeal, so to speak.

Two more People’s Court letters arrived. They guaranteed I’d receive the money sought if I won the case. They’d pay for my time, which as a writer is about 2½¢ per minute or word or some such. They’d pay my travel expenses. I pictured a coronavirus motel off a Connecticut interstate. I ignored the offer, but I didn’t blame them for trying. It’s not every day a little guy takes on a $2.3-billion conglomerate.

The opposing lawyer wondered how our case came to their attention. I didn’t know, but I hazard producers might offer court clerks rewards or bounties to bring interesting cases to their attention.

Countdown

The court date approached. The Tallahassee attorney said he regretted to tell me California decided to play hardball. Would I accept one last offer of a replacement before they prepared for court? Umm, no but thank you, I said.

Meanwhile, I reminded the absentee dealer I hadn’t received a check or money order. He said negotiations to sell his company had kept him busy. The toad had set the terms of the agreement and he wasn’t meeting the conditions he set for himself.

Subpoenas

Subpoenas are writs or instructions to bring to court a person or thing. A subpoena ad testificandum commands the appearance of a person. A subpoena duces tecum commands the appearance of a thing.

I checked on the subpoena duces tecum for the tech support’s recordings. I gathered company sales brochures, went over my notes, and spent hours creating visuals to explain the technology and why their product failed. Wifi inside the courthouse was next to nil. Accordingly, I loaded their advertising videos on my computer so they could be played without internet.

The date neared. Their lawyer phoned. Would I accept a replacement plus a little (very little) extra to ship the old unit back to them for study? I declined. I contacted the dealer, who said he was travelling out of state and could I wait? He couldn’t get on-line. Use priority mail, I suggested.

The date grew closer. The lawyer enquired if I’d accept a replacement, deinstallation, reinstallation, removal of the old unit to their lab, and a bit more money? I told them they were getting closer.

The date loomed three days hence, then two days. Would I, asked the attorney, accept pretty much all I’d sought if we could finalize an agreement in the next few hours? I went, “Mmm,” drummed my fingers and said, “Of course. That’s all I wanted.”

Thus began a flurry of emails and overnight posts. I had no way of knowing whether the two corporate lawyers were a case of good cop / bad cop, but I believed the Tallahassee counsel encouraged the California Legal Department to stop with the hardball and settle.

I called the twisty dealer and informed him I was out of patience and he was out of time. He was in the hospital, he said, palpitations of the pump due to the stress of this case. Just deliver a check, I said, then you’re done.

In the final hours before the hearing, the conglomerate’s attorney prepared motions to dismiss their part of the case. In our non-disclosure agreement, I consented not to bad-mouth their company. Not a problem– I didn’t hate them, but I refused to accept failure of responsibility for a failed product. One tech support guy could have solved the problem a year earlier.

In the middle of the final exchanges, the phone rang– the dealer. He suddenly remembered he had a wife and she could deliver a bank draft to me in the remaining ninety minutes.

Closing the Case

The dealer’s wife squeaked in with the check. That released him from further obligation.

Several days later, a different installer phoned. Under corporate instruction, he was ready to swap out the defective unit for a… he sounded puzzled… lesser model?

Their company’s flagship ‘smart’ gadget couldn’t be trusted, but their top-of-the-line ‘dumb’ models had a good reputation, I worked out a deal to trade down and then provide my own intelligent controller. The installer swapped gadgets, I attached a new electronic brain, and that’s worked well since.

I emailed the California vice president and the Tallahassee lawyer, thanking them for resolving the problem. I love almost being a Southerner. The email to the Florida lawyer might have been a bit more genuine.

And Now…

Smart appliances, intelligent gadgets, and home automation are running smoothly. The homestead feels secure except… Well, a few weeks ago a burglar attempted a break-in. He made it into the garage. The system notified me and I notified the police. They got him. The state prosecutor loved the videos of the baddie picked up by multiple cameras.

I’ll reveal more about this after the burglar hearing. You won’t believe his last name.

Small Claims 2

Home Automation Interface

The goal of going to court is to be ‘made whole’. If you were injured, either physically or financially, you seek redress. Don’t try to profit, don’t attempt to win the lottery.

If you proceed to Small Claims court, you might find a few useful hints in the following. Otherwise, feel free to skip my scintillating prose and entertain yourself with 9gag.com or that old favorite, Wimp.com, whereupon farewell and I’ll see you in two weeks.

9Gag	Wimp

Meanwhile, on to the article!

Small Claims 1

“Open the pod door, Hal.”

“I’m sorry, Leigh. I can’t do that.”

“Hal, open the door.”

“Nope, sorry, no can do.”

“Hal, open the ¡@#$%£¢†€‡ door!”

“D’accord, Dave. It’s open.”

“Name’s Leigh, and no, it isn’t.”

“Is.”

“Isn’t.”

“Is.”

“Hal!”

“You can’t make me. Nyaa-nya-na-na-nah-nahhh.”

Geek Chic

This was not a conversation from 2001, but one in my own house in 2019. The name Hal has been changed to protect the guilty.

I’ve been upgrading my house with security features and smart home automation. Devices hooked up thus far include several lights and lamps, entry locks and garage doors, ceiling fans, air conditioner, water heater, thermostats, entertainment center, security cameras, a robot, a NAS storage device, and a number of talk-to-the-pod gadgets and displays.

My friend Thrush and I installed most of these as inexpensive, tinker toy, erector set, do-it-yourself doodads. I’ve avoided big, brand name products, which are less fun and très cher. They’re also proprietary– they might reject third party add-ons or charge you subscription fees to maintain connectivity to your products after the first year.

But, for a critical component, I deviated from the DIY rule. It was not cheap. I bought the latest name brand thingamajig from a well-regarded manufacturer, the latter part of a $2.2-billion conglomerate with $2.5-billion in home automation and security sales. Also, *gasp* I paid for dealer installation instead of assembling it myself. I had to wait two months for the initial product to roll off the assembly line. I’m also well aware of ‘bleeding edge’ technology, but with an engineer and a couple of software gurus on the premises, how risky could it be?

As it turns out… there’s a reason I’ve not mentioned the product and brand name– I signed a settlement agreement not to. After a multitude of ‘Hal’ interactions not unlike the above, I sought remedies.

What Could Go Wrong? Wrong? Wrong?

The device would not obey Apple, Android, or Google demands. It often reported contrary information, e.g, it claimed the device was on when it wasn’t, and vice versa. Worse, I couldn’t tell it to turn on the doohickey because it thought it already on, and I couldn’t tell it to turn off the box because it was already off. The only solution was to reboot.

Mashing the on/off buttons often proved fruitless. I pictured some poor schlep in California helplessly watching his kitchen devices cycling on an off, his lights flashing, and his garage door bouncing up and down thanks to a signal routed from Florida.

Meanwhile, lights would go on and doors would unlock and open at three in the morning. Picture Captain Kirk slamming face first into Enterprise doors that abruptly open and close. Fortunately the blast from the rudely awakened entertainment center frightened away any curious burglars.

Internet capability either wasn’t installed or it refused to work. Even if internet had been fully functional, it was poorly designed. If the internet was down (as mine constantly is!), their version of software couldn’t operate the device. You’d have to get out in the rain to open doors and turn on lights, even if you had electricity.

I’d purchased battery backup that of course spectacularly failed. I’m hard pressed to think of anything that did work. Believe me, the situation was so much worse than I’m allowed to describe.

The Consumer’s Fault School of Customer Support

So call tech support, right? Exercise my warranty and call the installer too?

The first techie admitted they didn’t yet have manuals and guidelines, but agreed the unit wasn’t behaving as promised in promotions, including expensive video ads. He'd request a replacement.

Then the second guy I’ll call Dan, but his real name is Butthead. He aggressively began by insisting nothing could be wrong with the device. He said I expected behavior it wasn’t intended to do. Dan dismissed the lack of functionality as a misreading of their advertising. This ‘gentleman’ (Sarcasm cleanup on aisle 4) told me I was annoying, nasty, and abusive. (I never was, but we’ll return to that.) Joining in with the installer, Dan accused me of cheating his company and trying to get something for nothing. From there on out, he fielded subsequent incoming calls and refused to forward me to either the original tech guy or their boss.

Wow. Not only did I pay out $2500, but failure of the device was sucking $100 a month out of my (personal) micro-economy. Details might violate the settlement confidentiality agreement, but the point is that the device was slowly bleeding me.

Believe me, I’ve understated the problems. So what’s an American boy to do? I sued. I took the $2.2-billion conglomerate to small claims court.

Wait! What is she ➡︎ doing here?

In a subsequent article, I’ll explain my experience and offer tips to anyone considering this route. See you in two weeks!

Fine! If He Can't Be Treasury Secretary....

"The pure ermine of the Supreme Court is sullied by the appointment of that political hack."

— The New York American, March 17th, 1836

Two cycles ago in the Sleuthsayers rotation, I wrote at some length about the current national discourse around those pesky Confederate monuments. Two weeks back, I wrote about armed incursions, unauthorized and unsanctioned by the United States government, into Mexico and other then-emerging nations in the Caribbean Basin.

The bust in question.

Today's post kicks off with a quick reference back to Monumentgate: namely, the debate on whether or not to remove the bust of former U.S. Supreme Court Chief Justice Roger B. Taney from its current perch in the U.S. Capitol building. And then I'm going to try to tie all three posts together with the theme which clearly connects them.

First: Taney (pronounced "Tawny"), who served as Chief Justice of the U.S. Supreme Court from 1836 until his death at age eighty-seven in 1864. The current debate is whether to remove the bust of him which resides on the old Supreme Court chamber in the U.S. Capitol, and replace it with a bust of the first African-American justice, Thurgood Marshall.

Like a number of the men memorialized in those statues currently causing such a commotion both here and abroad, Taney was a Southerner (born and raised in Maryland). Also like so many of them, he was a member of the planter aristocracy (Taney's family holdings produced mostly tobacco). There can also be little question that Taney believed, as did so many of these other men, that slavery was the bedrock on which "Southern culture" rested, and therefore must be protected.

However, unlike most of these other monumental (see what I did there?) subjects, Taney freed his slaves. Also unlike so many of his fellow Southerners occupying positions of authority in the United States government, Taney did not resign his position when secession came (as one of his fellow Supreme Court justices did). And like fellow slave-holders such as Thomas Jefferson, he seems to have had mixed feelings about slavery, however important he may have felt it was to the Southern way of life. 

Now bear in mind that Taney's home state of Maryland never actually seceded from the Union. What's more, Taney was in his eighties by the time hostilities broke out in December of 1860. It's not like he was going to join the army. What's more, his public writings and statements during the Civil War make clear Taney's opinion that the Southern states possessed the inherent right to secede from the Union, and what's more, he also clearly blamed Abraham Lincoln for said secession in the first place.

Chief Justice Roger B. Taney

It makes you wonder how, if given the chance, Chief Justice Taney might have ruled on the myriad court challenges to Lincoln's Emancipation Proclamation and the constitutional amendments which eventually enfranchised all native-born Americans and granted them both citizenship and the right to vote.

It shouldn't.

Because the existing record of Taney's legal work both as a trial lawyer and as a federal judge paints a pretty clear picture of how Taney felt about the legal status of both slavery and of enslaved peoples of African descent. Let's look at this record.

Taney famously stated in open court in 1819 that slavery was "a blot on our national character." Of course, he was defending an abolitionist against a charge of incitement to riot at the time. So does that statement really count? 

After all, Taney, wasn't just a lawyer. He was also a politician. And, as the quote which kicks off this blog post notes, something of a political hack, at that.

Initially a Federalist, Taney changed his party affiliation in 1828, in the middle of a four-year term as State Attorney General for Maryland. This was in coordination with his support for the presidential candidacy of Democrat Andrew Jackson of Tennessee. When Taney left office as Maryland's attorney general in 1831 he quickly found himself filling a succession of positions in Jackson's cabinet.

Jackson lost most of his cabinet over the "Petticoat Affair."

First he spent six weeks serving as acting Secretary of War, replacing John Eaton, who resigned as part of the infamous "Petticoat Affair." Then Jackson gave Taney plenty to do as Attorney General of the United States. 

Jackson had come to power at the head of a coalition of Southern and Western state interests intent on curbing federal overreach and asserting states' rights. Taney supported the view that local governments (in the form of the states) were the bedrock of good government, and that these institutions were more inherently aligned with the direct will of "the people."

Of course, "the people" did not mean all people. In a May, 1832 court appearance in his capacity as U.S. Attorney General Taney argued in support of a South Carolina law stating that free black sailors who came ashore while their ships were in South Carolina ports could be imprisoned. Taney reasoned that:

The African race in the United States even when free, are every where a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right...And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, and are permitted to be citizens by the sufferance of the white population and hold whatever rights they enjoy at their mercy. They were never regarded as a constituent portion of the sovereignty of any state... They were not looked upon as citizens by the contracting parties who formed the Constitution.

How do you think the guy who wrote that would have viewed the Thirteenth, Fourteenth and Fifteenth amendments? Remember these words. More on them below.

After a couple of years of representing the Jackson administration's interests in court, Taney found himself in line for an even more powerful position when Jackson fired his Treasury Secretary over a difference of approach in getting rid of the Bank of the United States. Jackson believed the Bank was illegal and wanted to destroy it. Taney supported the notion of independent "State" banks, and was more in line with Jackson on this than his predecessor. So Jackson named Taney as his new Treasury Secretary.

The only problem was that the Anti-Jacksonian ("Whig") party controlled the Senate, and Taney would need to be confirmed by the Senate in this new position as Treasury Secretary. Partly because of his (and Jackson's) stance on the Bank of the United States, and partly because of their loathing for Jackson personally, the Whigs managed to block Taney's confirmation. He bears the dubious distinction of being the first executive branch nominee on the history of the United States to fail to gain Senate confirmation.

Was Jackson EVER really this placid?

Furious, Jackson attempted to appoint Taney to an open position on the U.S. Supreme Court. Again, the Whig-controlled Senate blocked his appointment. But Jackson, not known for being either forgiving or a quitter, wasn't done.

It should be noted that during his eight years in office Andrew Jackson succeeded in completely remaking the Supreme Court, with an unprecedented five appointments. How this came to pass I intend to address in my next blog post. For now, suffice to say that the next time a position on the Court came open, it was that of the Chief Justice, on the occasion of the death of the long-serving John Marshall.

Third time was a charm, mostly, because there had been an election in the interim and Jackson's Democrats now controlled the Senate, so he got Taney on the bench in March of 1836. The quotation that leads off this entry was published in response to Taney's appointment.

Taney quickly developed a reputation for careful, nuanced reasoning during his tenure on the Court. He might have come up as a political hack, but he was also clearly very concerned with being taken seriously as a legal theorist. His rulings in landmark cases throughout his first two decades on the Court won him respect on this front. 

They also constitute a clear-cut record of Taney's thinking on the issue of slavery and the role of both it and of African slaves in American society. Time and again Taney and the Jackson-appointed Southern majority on the Supreme Court ruled to support what Southerners termed their "peculiar institution."

This all came to a head with the historical event for which Taney is probably best known: his authorship of the Supreme Court's notorious majority opinion in the federal case of Dred Scott v. Sanford (1857). In this sweeping ruling, dealing with the question of whether a slave taken by his owner into a state or territory where slavery was outlawed was to be considered free, Taney went far beyond the narrow scope of the question before the court, and attempted to settle the broader questions of the legality of slavery and the role of African-descended peoples, be they slave or free, in American society.

As he had argued twenty-five years earlier in the South Carolina port case quoted above, Taney maintained that because their status had not been expressly spelled out by the framers of the Constitution, African Americans had no legal status in the American legal system, and thus, were inherently barred from becoming citizens (never mind that when the Constitution was drawn up in 1788 five of the original thirteen states already afforded free blacks the right to vote). As a result blacks–free or slave–were legally disqualified from bringing suits in federal courts. Under the Constitution, Taney ruled, blacks possessed "no rights which the white man was bound to respect."

You probably know what happened next. Rather than settling the slavery question "once and for all," Taney's decision brought down a firestorm of criticism on his and the Court majority's heads. If anything the Dred Scott  decision helped bring about the violent sectional conflict so many–including Taney's political benefactor Andrew Jackson–had worked so hard to forestall. 

In the words of historian Daniel Walker Howe: "Taney's blend of state sovereignty, white racism, sympathy with commerce, and concern for social order were typical of Jacksonian jurisprudence...

Ironically his devotion to state sovereignty and white supremacy in the long run contributed to the dissolution of the Union Andrew Jackson loved."

So should that bust of Taney in the U.S. Capitol come down? Should it be replaced with one of fellow Marylander, the Baltimore-born, brilliant lead attorney in the ground-breaking Brown v. the Board of Education civil rights case, and eventual first African-American Supreme Court Justice Thurgood Marshall?

Of course.

But don't just take my word for it. Ask the Maryland State Assembly and the Baltimore City Council. Both entities removed bronze statues of Taney from their grounds back in 2017.

Tune in next time when I take on the question of how Andrew Jackson managed to get five of his own hand-picked justices placed on the Supreme Court in a mere eight years.

See you in Two Weeks!

No Good Deed Goes Unpublished

I detest being lied to, I really do. Worse, I sometimes can’t tell when I’m lied to. Take the following case in which a tenant spun fanciful stories I found all too believable. Eventually, her tales grew so fantastic, they gave even me pause. The fact women could see through her when I couldn’t gave me greater appreciation. It’s undoubtedly the reason female defendants prefer all-male (and very gullible) juries.

Come to think of it, I had a problem with a previous tenant, a stripper who’d wrap males around her little finger. Those problems came to a close when a female deputy, immune to her abundant charms, took her in hand.

Meanwhile back at the ranch, I discovered my internal lie-detector is broken.

Typical Landlord

The Never-Ending (First) Storey

After 22 months, I’ve finally succeeded in an eviction. Almost… the deputy hasn’t yet executed the Writ of Possession, so it’s still possible the tenant may pull off another coup.

Part of it’s my own fault– I was out of state for lengthy periods. The tenant fought vacating the property with everything she had. I’d been contracting kitchen and bathroom renovations– new oak cabinets, new granite counters renters might find hard to damage, and new flooring. This coincided with Hurricane Irma (life in Florida’s defined by hurricanes) when subcontractors proved hard to find.

Peculiarly, replacing cabinets and counters requires four distinct kinds of workmen and ne’er the twain shall meet. Cabinet installers won’t work with wiring, plumbing, or (shudder) cabinet tops. The granite and marble people won’t touch electrical, plumbing, or God forbid, cabinets. Needless to say, electricians and plumbers don’t handle the other stuff either.

The tenant disliked that I was permanently removing the garbage disposal, a practice I began long ago in response to abuse by renters. Mats of hair and buckets of bacon grease don’t work well inside pipes… and disposals. Tenant insisted a garbage grinder, along with air, water, and cable television, constituted an essential human right.

We also underwent a conflict with the dishwasher. I don’t know why, but more than one tenant eschews using dishwashers. The machines need to be used every week or so to keep seals moist and the mechanism working. In this case, the tenant wanted to store dishes in her machine and complained about water pooled around the central pump.

I explained that was normal; she disagreed. She argued it was a health hazard. What might happen, she said, if water should leap out on the floor. I know, I know– weird, huh. I stated I’d much rather she follow the terms of the lease by changing air conditioning filters once a month so our new a/c wouldn’t break down and maybe dump water on the floor.

As the lease was expiring, new cabinets went in, new counters went in, wiring was finished, and new plumbing… never happened. Plumber A reported he tried several times to schedule an appointment and she refused. Plumber B reported he tried several times to schedule an appointment and she refused. WTF? as the blogger wrote.

Typical Tenant Victim

Hook, Line, and Sink

Most strangely, the original kitchen sink and its new faucet went missing. Oh, said the tenant, the cabinet people put it on the curb for trash pickup. WTF? The tenant claimed installers wouldn’t put discarded cabinets on the curb, but they specifically toted out the sink they were supposed to reuse?

We wouldn’t do that, said the cabinet folks. We wouldn’t do that either, said the granite people. Both said the tenant told them not to reuse the sink and faucet.

Belatedly sensing I’d been lied to, I asked the tenant if her boyfriend/caretaker took the sink and faucet for his flea market business. Lo, a miracle happened. Said boyfriend found a matching sink complete with identical faucet on a neighborhood curb and brought it home, too late, of course, to be inset and sealed by the counter workmen.

Trashing in Public

The homeowner’s association complained about junk in the front yard. The cabinet installers said the tenant told them not to put the old cabinets and refuse on the curb. Once again, WTF?

The tenant told me HUD Section 8 called in her friends in Code Enforcement, aka the decorating police. That seemed peculiar since the house recently passed inspection predicated upon finishing the plumbing.

The tenant told me the electric company turned off the power because her electrical cords were sparking, and oh yes, she needed new light bulbs. I explained I kindly replaced bulbs during my visits, but electrical cords, light bulbs, and taking out the trash were the tenant’s responsibility, as explained in the lease. The tenant disagreed.

In fact, the tenant disagreed so much she stopped paying rent. Ma’am, I said, you can’t live here if you don’t pay rent. The tenant disagreed.

The tenant announced because I’ve been such a bad landlord, light bulbs didn’t work, the electrical cord for her television didn’t work, the garbage disposal didn’t work and, thanks to unfinished plumbing, the kitchen sink didn’t work. Oh, and according to her, Code Enforcement was coming after me for all of the above plus piles of trash in the yard.

“You try make me move,” she said. “I own your ass. My friends want me sue you,” she said, “but I tell them you’re a nice man. Bad landlord, but nice man.”

Tenant for months refused to take my calls. Tenant also refused the property manager’s calls. The property manager, a wise woman I trust, told me the tenant had been lying her ass off to me.

I posted 3-day pay or vacate notices and 7-day notices to cure. The latter included an extensive list of property and lease violations, much of it related to her boyfriend/caretaker wrecking the back yard and cutting down trees from a lovely grove to further his lawnmower, appliance, and car engine repair business.

Typical Code Enforcement Officer
Dennis Rader

Tenant complained I’m such a bad landlord, the air conditioner no longer worked. She claimed Section 8 yet again called in Code Enforcement because shower heads went missing. Likewise, electrical switch plates someway disappeared. A tiny corner of linoleum under the cabinets’ kickplate curled ever so minutely, constituting a dastardly dangerous hazard to life and limb. If I took her to court, she said she’d bring Code Enforcement, whom mortals fear more than Lord Voldemort on a bad hair day.

As a landlord, as a male, I’ve learned to be leery. My reasons not to visit an XX chromosome tenant alone are a little different from persnickety Mike Pence’s, but it pays to be cautious. This time I took my friend Geri. After that meeting, she said, “I’m too much of a Southern lady to say she’s lying, but she doesn’t have a Godly relationship with the truth.”

For the first time we learned Section 8 was paying for another apartment in a nice downtown building while the tenant simultaneously hung onto my property with all her devious might.

I’d divined two reasons the tenant refused to move. She’d piled the house full of her treasures from hoarding. The living room housed a half dozen washers and dryers from her boyfriend’s business, suggesting another primary reason for clinging to the property. Where could he house and practice his lawnmower and appliance repair business?

Geri, a teacher, figured out a third and possible principal reason. By keeping my address, the tenant was able to keep her girls in the well-regarded school next door, and not send them to the inner city school that went along with her new apartment. In Florida, enrolling children in schools outside the tax district is considered fraud.

The property manager, calling from a different phone number, made one last stab at getting the tenant out, specifying a cutoff date. The tenant refused but, armed with the our target date, phoned me the morning of.

“Are you really going to court today?”

“This afternoon, yes, I am. You have a final chance to leave quietly.”

Unsurprisingly, she declined, but phoned me minutes before I departed for the courthouse.

“I slipped and fell. The lawyers for the clinic want an initial $50,000 to treat me.”

“What? Where? How did you fall?”

“In the kitchen, that curled piece of linoleum.”

“How could your toe reach it? It’s under the cabinets. Did a seizure cause the fall? Wait… Lawyers for the clinic? Don’t you have Medicare or Medicaid?”

“Yes, but I no use it for this. I need $50,000.”

“Convenient it happens on the day I file the paperwork.”

“Did I say today? I mean recently, since I saw you last.”

“After you were asked to leave?”

“Um, maybe a year ago, yes, that’s it. You know my seizures cause memory problems.”

“Last year after your lease expired and you were supposed to move out?”

“I mean two years ago, yes, two years.”

Instead of filing that day, I made an appointment to see a lawyer. He said dryly, “A surprising number of slip ’n’ falls happen during evictions. If she persists, come back and see me.”

A-Courting We Will Go

Finally, I spent a small pot of money to fund the eviction in court. The clerk of court’s rules lay out four requirements a tenant must follow to contest an eviction.

My tenant did none of them.

Instead, she wrote a 37-page letter to the judge that was shielded from public view (including my own) under a lock called VoR… view on request. That meant I had to execute a number of steps including a notarized affidavit and then wait for the clerk to determine if I was a deserving lad allowed to read it. When I finally found I could peep at it, all I could download was the first page. (The judge later kindly explained the remaining 36 pages were made up of letters and notices from various government agencies.) Curiously, that first page contained yet another version of the slip ’n’ fall, this time in the bathroom on a wet floor caused by a missing shower head.

At the end of page 1, the tenant advanced an innovative argument that the landlord owes her money for taking care of the property for him.

The morning of the hearing, my friend Thrush suggested I drive by the property to photograph the tenant’s trash. To my surprise, a white cargo van and a large trailer sat parked in front, doors open for loading. Another friend snapped photos for me.

With friends and witnesses, Darlene and Geri, I girded loins and set forth to wage righteous battle in the courthouse.

I hardly said a word. I didn’t need to.

The judge was a smart lady, very, very astute. She asked the tenant and her boyfriend/caretaker if they still lived at my rental address.

The tenant said no, she’d moved to a new apartment paid for by Section 8. The judge cocked an eye at me.

I said, “As we speak, Judge, a cargo van and extended trailer are loading goods from the house. I brought photos.”

The tenant hadn’t expected that. Quite unconscious of her previous contention, she proceeded to justify why she still lived at my address, mainly that I was a bad landlord but, she insisted, she didn’t live there.

“Did you give the landlord the keys?” asked the judge.

“No, I changed the locks. He’s a bad landlord. He won’t take our trash to the curb and…”

Time and again, the judge brought her back to the subject at hand. “So you do live there?”

“No, Your Honor, I just stay here so my girls can go to school. I keep it as my residence.” (Geri nailed the student residency issue.) “And Mr Leigh complains about our cutting trees down and he don’t want my boyfriend, I mean caretaker, working no more on cars and lawnmowers and he no fix my light bulbs and plumbing and he took away my disposal and I slip on the wet kitchen floor and I no wear my arm sling in public but I hurt my wrist and no use my Medicare so I call Code Enforcement who say he’s a bad landlord and…”

The tenant had just told yet another version of slip ’n’ fall. I wondered if the judge caught the differences between her testimony and the version she gave the judge in the letter. I need not have worried.

“Stop.” The judge gave the basketball timeout T-signal. “I find you do live there.”

“No, Your Honor, He’s mean to say that. I only…”

“Stop right there. I’m granting the plaintiff a Writ of Possession.”

“How long does that give me before I must move, Your Honor?” asked the tenant.

“Once a deputy executes it, you have 24-hours to depart.” With the upcoming weekend plus assignment to a deputy, the tenant had a few days grace period.

The unhappy tenants departed.

As I packed up, the judge leaned to the clerk and said, “That woman lied from the moment she opened her mouth and never stopped. I hate being lied to.”

Damn, every woman sensed her lying. Score: Women 6, Leigh 0. I’m not a bad landlord, but I am a terrible lie detector.

Oh, wanna buy a house? Sandwiched between two schools, it’s a great rental unit.

Guest Post: V.S. Kemanis on "Writing Legal Suspense"

I'm pleased to host V.S. Kemanis today for an insightful guest post on writing legal suspense fiction. I know Vija best as a fine short story writer whose work has appeared in Ellery Queen's Mystery Magazine and the EQMM anthology The Crooked Road, Volume Three, among other places. But she's also a novelist—Deep Zero, the fourth book in her Dana Hargrove series, releases next week—and as she discusses here, much of the series draws on her background as an attorney herself. As her website explains, "In her legal career, she has been a criminal prosecutor of street crime and organized crime for county and state agencies, argued criminal appeals for the prosecution and defense, conducted complex civil litigation, and worked as a court attorney for state appellate courts." An impressive career, an extensive resume, but how do you draw on one career in law when pursuing another as a writer? In her essay here, she addresses that point and more. Welcome, Vija! — Art Taylor

Writing Legal Suspense: Navigating the Personal and the Professional 

By V.S. Kemanis

V.S. Kemanis

Writing what I “know,” drawing on my legal career, I created a series featuring a female assistant district attorney. To clarify, I recall a pleasant chat I had with two people in a noisy bar—the KGB Bar in Manhattan—on an evening I was scheduled to read from my work. A bit later, when they didn’t realize I was standing nearby, I heard one of them say to the other, “I can’t believe that woman told us she used to be a prostitute!”

Sorry to disappoint, but my protagonist is a female prosecutor, not a prostitute. I’ve given her some enviable qualities without being too liberal in the idealization department. She’s not without her vulnerabilities, some of which are taken from my own experiences.

I went to law school in the late seventies, a time when the male/female student ratio was finally approaching 50/50. By the time I entered the Manhattan District Attorney’s Office, the class of new recruits was almost evenly split along gender lines, but the courtroom was still largely a man’s world. I never had to break new ground, to go where women had never gone before, but I rode in on the tidal wave of female entrance into the legal profession.

Even so, it was not easy. I remember times when I felt like the fifth wheel or the unwanted interloper in the old boys’ club. A few uncomfortable situations from the early years will never fade from memory. There was an appellate judge who told me during oral argument that I sounded like a “schoolteacher.” A boss who made jokes about not being able to get around me in the hallway when I was pregnant. A roomful of seasoned investigators explicitly discussing a woman’s body, unmindful of my presence.

But these indignities were insignificant compared to greater challenges. Working in the criminal justice system can be an emotional rollercoaster, dealing with shattered lives, tough adversaries, and conflicting views on policing and punishment, to name a few things. For a young professional starting a family, juggling the demands of career and personal life can be nearly overwhelming.

So, when I embarked on my legal suspense series, I wanted to wrap all of this up in my strong-female-lead-with-vulnerabilities character. Her name is Dana Hargrove. For some years now, I’ve been throwing impossible ethical dilemmas at Dana, many involving the intersection of her career and family.

In creating these novels, the easy part is plotting Dana’s criminal cases and ethical dilemmas. A pool of this stuff swirls in the back of my mind, cases I handled as a prosecutor or read about in the latter part of my career as an editor at an appellate court. Insert fictional characters, change some details, find a connection to Dana’s life, and the plot emerges.

The tough part for me is to incorporate the law into the story, without making it sound like a legal brief. I endlessly rewrite the sections with the legal underpinnings for Dana’s conflicts, dilemmas, and decisions. My goal is to be accurate and to make the law accessible and interesting. Not boring. (Really? The law can be boring?) This is where questions of writing technique and target audience come in. I imagine that any writer who relies on technical knowledge to advance a story faces similar challenges.

Let me back up and make an embarrassing admission. I’m absolutely fascinated by criminal law and courtroom procedure! This stuff has everything: it’s intellectual and technical and absurdly detailed but also grounded in basic moral tenets. Who couldn’t love it?

Well, I’ve come to learn that many fans of crime fiction do not share my thrill at the clever gymnastics of incisive legal argument. To be fair, many do. I could decide to limit my target audience to legal nerds like me. But I’d rather make my stories appealing to a broader audience, without sacrificing the legal conundrums. Comments from beta readers, reviewers, and fans have helped with this.

The main technique I use for making the law flow is to cut out a lot of filler. The dramatic bits are highlighted: a brutal cross-examination, the surprise testimony, the jury’s verdict in a close case. This doesn’t make it inaccurate or unrealistic—just condensed. Focusing on the consequences of a prosecutor’s decision, instead of the technical rules, is another way to make the story come alive. If Dana does X, she could be disbarred. If Dana does Y, the killer could go free.

Thanks to popular entertainment, basic legal terms are now part of everyday language: probable cause, Miranda rights, suppression of evidence. The writing challenge arises with ideas that haven’t made it into common parlance: statutory elements of specific crimes and rules of professional ethics. Sometimes, Dana goes through mental gyrations or discusses a problem with her colleagues. I read these scenes out loud to myself and others. Do they make sense? Does the dialogue sound authentic? Funny or not, a lot of lawyer-speak is completely authentic but won’t sound that way to a non-lawyer. “People don’t talk like this.” Actually, they do. But anything that bogs down the story should be trimmed or rewritten to make it more colloquial.

After four novels, my journey through Dana’s fictional world has been a new mix of the professional and the personal. The pastime of fiction writing has morphed into a profession. The creation of characters has morphed into my alternate reality. Dana, her friends and family, have invaded my life.

I ask creators of series if you agree: It’s a lot of fun having a second family.

The Court Reporter's Tale

            One of the many problems I have with courtroom dramas (let me count the ways!  and I probably will, as time goes along) is that they ignore court reporters.  They're there, taking notes, saying nothing, and vanish whenever anything happens.  And yet they're a pivotal, important part of any court.  

            Now, I admit I don't know how it's done in New York City, but in smaller cities and rural areas, every judge has his/her own personal court reporter.  These are long-lasting relationships - some for decades.  Always symbiotic; sometimes strange; usually very professional; sometimes not; and once in a while the kind to make any court administrator wake up in a cold sweat, with the words "sexual harassment law suit" running through their minds.  And court reporters are human beings, too:  I remember one court reporter who started dating one of the witnesses, surreptitiously, who later turned out to be heavily involved with the drug-dealing defendant.  That got wild and wooly:  the court reporter got shot one night, and the only reason the court reporter wasn't fired was that the judge used all of his considerable clout to prevent it.

            Judges will use their clout to protect their court reporter, because one of the worst things that can happen to a judge, other than being caught in a motel room with a minor the day before elections, is to lose their court reporter of long-standing.  This is hell for a couple of reasons:  (1) most judges depend on the court reporter to keep track of  everything for them and (2) they're going to have to break in a new court reporter, and no one - let me repeat, NO ONE - wants to be around while that's going on.  (http://www.stus.com/stus-cartoon.php?name=Court+Reporter&cartoon=blg5807)   There's also the problem of getting transcripts, but we'll get to that in a minute.   

            It's the court reporter who makes sure that the judge's life runs smoothly.  First of all, he/she keeps the judge's calendar.  That's a lot of clout right there.  You want an early hearing?  Or a delay?  Does the court reporter like you?  Know you from Adam's off ox?  Let's just say that any smart attorney keeps in very good with the court reporter. (Note this website about "gifting" - http://promotionholdings.com/legal/court-reporter-gifting-and-lawyer-ethics/  Not that it happens very often, of course.)  By the way, when the judge calls everyone into his/her chambers for some reason?  The court reporter is there.  When the judge goes golfing?  Court reporter often goes along.  When the judge is in chambers, thinking?  The court reporter is the guard dog on the threshold. 

            Other things on a court reporter's plate:  making sure the courthouse is set up to the judge’s personal specifications.  There's a whole list of things, from proper beverage on - or under - the bench, to the various requirements of life in the judges' chambers.  Hint:  When the court reporter tells you the judge wants M&Ms or Diet Seven-Up or only blue pens, get it before the fit is pitched.  Often the court reporter is also the judge's chauffeur, driving them to and from court (and here in South Dakota, that could be a considerable distance for a traveling judge).  Court reporters are also secretaries, valets, servants...  There's a wide range of duties.   

            Oh, and yes, they also take notes.  Either the very old fashioned way by hand (Bogie movies), 

or the old fashioned way (stenotype machine), or the new paperless way. 

Now the court reporter is hired by the state or the federal government (depending on judge’s level); but the government doesn’t pay for the court reporters’ equipment (which costs about $4,500).  This means that while the court reporter is paid for taking down the hearing or trial in court, the actual notes technically belong to the court reporter, and he/she is paid again for actually transcribing them.  “Double-dipping!” claim the accountants.  “Pay for our equipment!” cry the court reporters.  “No way in hell!” scream the bureaucrats.   And the situation continues.  By the way, in case you're wondering, transcripts currently cost around $2.00-$2.50 a page, or $1.25 a minute of court time, whichever costs more.  A court reporter who works for an active judge can make a pretty good living.  It's the free-lancers who are often close to starving...

 Let's talk for a minute about the records.  The old stenotype machines have only gone the way of the dinosaurs fairly recently.  They produced a stack of paper, about 3 inches by eternity, on which the transcript is coded; this code is in shorthand, and each court reporter had his/her own shorthand on top of that.  It could be very hard for one court reporter to read another court reporter’s notes.  (And that wasn't entirely by accident:  it's called job security.)  In the old days, the court reporter would read the paper tape and type it on a typewriter.  Then a computer.  And, finally, software was developed that could take those notes and format them into a word processing mode, but, since this requires translation from the shorthand, even this gets tricky.  For example, the words “their”, “there”, “they’re” and “the air” are all coded exactly the same.  So the court reporter has to both program the software to match his/her shorthand, and also remember what was actually said in the hearing.  Sometimes they don’t.  Sometimes they're not around because they're retired.  Sometimes they're dead.  

And that's when it gets tricky.  Because not all court notes get/got transcribed right away, or soon, or at all.  Think of all the hearings and trials that are held every day in every town and city:  they don't get transcribed unless they're specifically asked for.  Joe Blow pleads guilty to a DUI and gets sentenced to, say, a year's probation and time served .  Jill Smith gets caught robbing a casino, and gets 2 years.  There's a dispute over the construction of a driveway that goes to trial.  (I remember congratulating the judge on his ability to sleep with his eyes open on that one.) There's a jury trial about a possible child abuse case, and the person is acquitted.   Or one in which they're found guilty.  The paper is there, on tape, on record - but it may or may not ever be transcribed, because the real reason for transcription is a dispute over the verdict. That doesn't always happen.  Or at least, not right away.  In my days with the circuit court, I remember seeing stacks and stacks and stacks of tapes, dated and semi-labeled, that had never been transcribed, and probably never would be.  

Unless...  And what if...